And Now, the Arizona Twins

Justice O'Connor teams up with court Conservative Rehnquist

First there were the Minnesota Twins:

Chief Justice Warren Burger and Associate Justice Harry Blackmun. The label was attached to the pair during the 1970-71 term, when Blackmun, newly arrived on the Supreme Court, voted more than 90% of the time with Burger, his fellow Minnesotan and childhood chum. Now come the Arizona Twins. In 48 of 52 written opinions this term, former Arizona Court of Appeals Judge Sandra Day O'Connor has sided with her Stanford Law School classmate, one-time Phoenix Lawyer William Rehnquist. The latest evidence of the like-mindedness of O'Connor and the high bench's leading conservative came last week in two areas: upholding seniority systems even if they favor white males, and limiting the right of prisoners to have their convictions reviewed.

Women and minority workers were the losers in the first case. At issue was a job-promotion plan at two American Tobacco Co. plants in Richmond. In effect, the scheme blocked blacks from many of the most desirable factory positions because whites had nearly always held the jobs that led to those spots. Black workers sued both the company and the union that negotiated the plan, charging that the plan's discriminatory impact violated the Civil Rights Act of 1964. But by a 5-to-4 margin, the Supreme Court ruled that even if a seniority system had a discriminatory effect, those challenging it had to prove that the discrimination was intentional. The decision, extending an earlier ruling, means that seniority plans drawn up even after passage of the 1964 act are protected by the tougher "intent" rather than "effect" standard.

If the decision had gone the other way, a rash of suits might have contested negotiated seniority systems that favor whites and males, not only in promotion but in pay and job security. Many last-hired, first-fired agreements, for one large example, will now be difficult to challenge. Justice Byron White, for the majority, explained that his ruling rested in part on "the policy favoring minimal governmental intervention in collective bargaining." But it also continues a conservative trend on the court, which has now applied the "intent" standard in school desegregation, voting rights and other cases.

Another trend on the court--toward the Chief Justice's oft-stated goal of cutting back on the review of criminal cases--got a boost in two opinions on habeas corpus written by O'Connor. One ruling involved claims by three Ohio convicts that their trial judges had given improper instructions to the jury. None of their lawyers had objected on that ground at the trial. The three said they were nevertheless entitled to federal review of their convictions via habeas corpus petitions if they could show that the judges' actions constituted "plain error." But O'Connor, relying on a 1977 Rehnquist opinion, held them to a tougher test. They must, she said, show good cause for not having raised the issue during the regular trial and appeal process, and they must show that the trial error resulted in actual prejudice to their cases. In the other habeas ruling, O'Connor applied the same test to a federal prisoner. None of the convicts was able to meet the more rigorous standard.

In her court decisions and congressional testimony, the freshman Justice has forcefully voiced her belief that the federal courts are awash in cases that do not belong there. Many arrive through use of the writ of habeas corpus. "The Great Writ," O'Connor wrote last week, "undermines the usual principles of finality of litigation. Liberal allowance of the writ, moreover, degrades the prominence of the trial itself." Finally, she argued, the endless federal review interferes with state courts. As firmly as such views have put O'Connor in Rehnquist's camp, the new Justice is by no means guaranteed to stay there. Court annals are full of examples of Justices gradually shifting their ideological ground. For example, last term Blackmun voted with Burger just 60% of the time, and now court watchers refer to the "Minnesota Twins" only when the subject is baseball.

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